AOS3 - Powers and Rights During Arrest and Questioning

Question 1

Non-exhaustive list of the sources of institutional powers

Answer 1

• police powers of arrest/questioning = Crimes Act 1958 (Vic)
• prosecution powers = Criminal Procedure Act 2009 (Vic)
• imprisonment powers = Corrections Act 1986 (Vic)

Question 2

Arrest powers - warrant

Answer 2

• a warrant is a court document allowing a person (police officer) to undertake a certain action (arrest, search)

Question 3

Arrest powers - without warrant

Answer 3

• can be arrested without a warrant if police believe it’s necessary to:
  
  • ensure the offender appears in court
  • preserve public order
  • prevent continuation/repetition of an offence or commission of another offence
  • ensure safety/welfare of the public/offender
• can also be arrested if police have reasonable grounds to believe a person has committed:
  
  • an indictable offence in Vic (can be heard summarily)
  • an offence elsewhere which would be indictable (even summarily) in Vic
• reasonable force can be used depending on circumstances

Question 4

Arrest rights

Answer 4

• can’t be detained unless arrested
  
  • don’t have to attend police station if not arrested
• individual must be informed, within reasonable time, why they’ve been arrested
• after arrest, individual must be released (unconditionally/bail) or brought, within reasonable time, to a magistrate/bail justice to have a bail hearing

Question 5

Questioning powers

Answer 5

• police can request name/address if:
  
  • individual has committed or is about to commit a summary/indictable offence
  • may be able to help in the investigation of an indictable offence
  • (summary offence to refuse/give false info)
• when someone is arrested, the police can question them to determine if they were involved in an offence

Question 6

Questioning rights

Answer 6

• have the right to remain silent
  
  • anything they say/do can be used as evidence in court
• they can (attempt) to communicate with a relative or friend to inform of whereabouts and/or legal practitioner in private
  
  • (can be deferred if could result in escape of accomplice/destruction of evidence/urgent questioning)
• police must arrange interpreter/defer the questioning if the arrested has insufficient English
• parent/guardian /independent person must be present if arrested person is under 18/has intellectual disabilities